Subd. 1. Purpose. The purpose of this section is to protect the health, safety and welfare of the people of the city from the adverse effects of secondhand smoke by better ensuring their ability to breathe air that is uncontaminated by secondhand smoke and vapor produced by electronic delivery devices (more commonly known as e-cigarettes); to affirm that the right to breathe has priority over allowing people to smoke or vape; and to protect vulnerable populations, including employees, children, the elderly, and those with chronic health conditions from the adverse effects of secondhand smoke or e-cigarette vapor.
   Subd. 2. Definitions.
      A.   Application of Definitions. All terms shall be given their commonly accepted definitions. The singular shall include the plural and the plural shall include the singular. The masculine shall include the feminine and neuter, and vice-versa. The term “shall” means mandatory and the term “may” means permissive. Definitions in this section shall pertain only to this section and shall have the meanings stated herein.
      B.   CANNABIS FLOWER. The harvested flower, bud, leaves, and stems of a cannabis plant. Cannabis flower includes adult-use cannabis flower and medical cannabis flower.
      C.   CANNABINOID PRODUCT. Cannabis products, hemp-derived consumer products, or lower-potency hemp edible, as those terms are defined under M.S. § 342.01.
      D.   ELECTRONIC DELIVERY DEVICE. Any product containing or delivering tetrahydrocannabinol, nicotine, lobelia, or any other substance intended for human consumption that can be used by a person to simulate smoking in the delivery of tetrahydrocannabinol, nicotine or any other substance through inhalation of vapor from the product, an activity commonly referred to as vaping. Electronic delivery devices include but are not limited to what is commonly referred to as e-cigarettes. ELECTRONIC DELIVERY DEVICE shall include any component part of such a product whether or not sold separately. ELECTRONIC DELIVERY DEVICE shall also include any device used for vaporizing medical cannabis pursuant to M.S. § 152.22, Subd. 6. ELECTRONIC DELIVERY DEVICE shall not include any product that has been approved or otherwise certified by the United States Food and Drug Administration for legal sales for use in tobacco cessation treatment or for other medical purposes, and is being marketed and sold solely for that approved purpose.
      E.   FOOD ESTABLISHMENT. Any establishment, however designated, engaged in the preparation or serving of food or beverages for consumption either on or off the premises, or anywhere consumption of food occurs on the premises. This term includes any establishment that has an on-sale non-intoxicating malt liquor license, an on-sale intoxicating liquor license, an on-sale wine license, and/or a strong beer liquor license issued by the state or the city.
      F.   HOOKAH. A pipe with a long, flexible tube by which the smoke is drawn through a jar of water and thus cooled for the use of tobacco products.
      G.   INDOOR AREA. All space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than 50% of the combined surface area of the vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent. A 0.011 gauge window screen with an 18 by 16 mesh count is not a wall.
      H.   OTHER PERSON IN CHARGE. The agent of the proprietor authorized to provide administrative direction to, and general supervision of, the activities within a public place or place of work at any given time.
      I.   PLACE OF WORK. Any indoor area at which one or more individuals offer products or perform any type of a service in person for members of the public for consideration of payment under any type of contractual relationship. This includes, but is not limited to, an employment relationship with or for a private corporation, partnership, individual, or government agency. This term includes any location where products or services are offered gratuitously. Examples of a PLACE OF WORK include, but are not limited to, indoor areas of an office, a factory, a hotel or motel; a vehicle used in whole or in part for work purposes during hours of operation if more than one person is present; a warehouse; indoor areas of private clubs and rooms used for private meetings or social functions, and other locations where products are offered and/or services are performed under an employment relationship. An area in which work is performed in a private residence is a place of work during hours of operation if:
         1.   The homeowner uses the area exclusively and regularly as a principal place of business and has one or more on-site employees; or
         2.   The homeowner uses the area exclusively and regularly as a place to meet or deal with patients, clients, or customers in the normal course of the homeowner’s trade or business.
      J.   PROPRIETOR. The party who ultimately controls, governs, or directs the activities within the public place or place of work, regardless of whether the party is owner or lessee of the public place or place of work. The term PROPRIETOR may apply to a corporation as well as an individual.
      K.   PUBLIC PLACE. Any indoor area used by the general public or serving as a place of work including, but not limited to, arenas, auditoriums, bars, bowling alleys, bingo halls, commercial establishments including licensed retail tobacco establishments, educational facilities, hospitals, offices and other commercial establishments, pool halls, public conveyances, restaurants, retail stores, and common areas of rental apartment buildings. This term includes taxis, limousines, and other for-hire vehicles used to transport the public during hours of operation. PUBLIC PLACE also means an outdoor area of a public recreation center or public park, including, but not limited to, a public playground, swimming pool or other recreational area when in use by youth under the age of 18.
      L.   SMOKING. Inhaling or exhaling smoke from any lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco, cannabinoid product, or other plant product, or inhaling or exhaling vapor from any electronic delivery device, an activity which is commonly known as vaping. Smoking shall include possessing or carrying a lighted or heated cigar, cigarette, pipe, hookah, or any other lighted or heated tobacco product or plant product intended for inhalation.
      M.   TOBACCO PRODUCT. Any products containing, made, or derived from tobacco that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, sorted, sniffed, or ingested by any other means or any component, part, or accessory of a tobacco product, including, but not limited to, any substance or item containing tobacco leaf, cigarettes; cigars; pipe tobacco; snuff, fine cut or other chewing tobacco; cheroots; stogies; perique; granulated, plus cut, crimp cut, ready-rubbed, and other smoking tobacco; snuff flowers; cavendish; shorts; plug and twist tobaccos; dipping tobaccos; refuse scraps, clippings, cuttings, and sweepings of tobacco; and other kinds and forms of tobacco leaf prepared in such manner as to be suitable for chewing, sniffing, or smoking or both for chewing and smoking. TOBACCO PRODUCTS excludes any tobacco product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for such an approved purpose.
(Ord. 725, passed 8-21-23)
   Subd. 3. Smoking Prohibitions.
      A. Smoking Prohibited. Except as provided in Subd. 3, smoking is prohibited in the following locations:
         1. Public places and places of work;
         2. Outdoor dining or bar areas, including sidewalk seating, of any food establishments that provide wait staff or any other staff services to patrons in those areas; and
         3. Within 15 feet of entrances, exits, open windows, and ventilation intakes of public places and places of work, to help prevent tobacco smoke from entering public places and places of work and to protect individuals entering such places from being exposed involuntarily to secondhand smoke, e-cigarette vapor and vaporized medical cannabis.
      B. Exceptions. The prohibitions of this section do not apply to the following places or situations:
         1. Private residences;
         2. Motor vehicles in private use;
         3. Motor vehicles that serve as a place of work for no more than one employee;
         4. The use of tobacco by an enrolled member of a federally-recognized Indian tribe as part of a traditional Indian spiritual or cultural ceremony;
         5. Twenty percent of the guest rooms offered as sleeping accommodations to guests in hotels, motels, or similar lodging places, provided that:
            a. All smoking-permitted guest rooms on the same floor of a hotel, motel, or similar lodging place are contiguous; and
            b. All smoking-permitted guest rooms are clearly marked as “smoking permitted” on, or next to, entrances to each room.
         6. Situations where members of the public are passing through on an outdoor street, alley, or sidewalk where smoking is prohibited by this section while enroute to another location;
         7. Use of vaporized medical cannabis by a person legally authorized to use in any place not prohibited by M.S. § 152.23.
   Subd. 4. Additional Prohibitions for Smoking Cannabis Flower or Cannabinoid Products.
      A. Smoking Cannabis Flower or Cannabinoid Products Prohibited. Except as provided in this section, smoking cannabis flower or cannabinoid products is prohibited in the following locations:
         1. Anywhere smoking is prohibited under Subd. 3.
         2. Anywhere within the city that is not an exception under this division.
      B. Exceptions. The prohibitions of this section do not apply to the following places or situations.
         1. A private residence, including the curtilage and yard of such residence.
         2. Private property not generally accessible by the public, unless a person is explicitly prohibited from consuming cannabis flower of cannabinoid products on the property by the owner of the property.
         3. The premises of an establishment or event licensed to permit on-site consumption of cannabis flower or cannabinoid products.
         4. Use of vaporized medical cannabis by a person legally authorized to use in any place not prohibited by M.S. § 152.23.
         5. Smoking by means of an electronic delivery device.
      C. Penalty. Violation of this division is a petty misdemeanor as defined by state law. This section may be enforced by administrative citation under § 1.98.
(Ord. 725, passed 8-21-23)
   Subd. 5. Private Prohibitions. Nothing in this section prevents the proprietor or other person in charge of any place, including, without limitation, any residence, motor vehicle, hotel, motel, or other lodging place, or any outdoor space, from prohibiting or further restricting smoking or the use of electronic delivery devices in any such place.
   Subd. 6. Retaliation Prohibited. No person or employer shall discharge, refuse to hire, refuse to serve, penalize, discriminate against, or in any manner retaliate against any employee, applicant for employment, or customer because the employee, applicant, or customer exercises any right to a smoke- free environment afforded by this section or other law.
   Subd. 7. Employee's Rights Preserved. An employee who consents to work in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party.
   Subd. 8. Other Applicable Laws. This section is intended to complement the Minnesota Clean Indoor Air Act, M.S. §§ 144.411 to 144.417, as amended from time to time. Nothing in this section authorizes smoking in any location where smoking is prohibited or restricted by other laws.
   Subd 9. Violations and Penalties.
      A. Smoking Where Prohibited. It is a violation of this section for any person to smoke in an area where smoking is prohibited by this section.
      B. Proprietor or Other Person in Charge. It is a violation of this section for the proprietor or other person in charge of any premises subject to this section to fail to comply with the requirements of Subd. 4 of this section or to retaliate against an employee, applicant for employment or customer, as prohibited in Subd. 6.
      C. Penalties.
         1. Consistent with M.S. §§ 375.53 and 609.02, a violation of this section shall be a petty misdemeanor for the first offense; any additional violation of any provision of this section shall be a misdemeanor. Each day of violation constitutes a separate offense.
         2. Failure to comply with any provision of this section shall constitute grounds for the denial, refusal to renew, suspension, or revocation of any food, liquor, or other business license issued by the city.
         3. Injunctive relief. In addition to the penalties provided in of this subdivision, a city attorney may bring a civil action against the proprietor or other person in charge of a public place or place of work to enjoin repeated or continuing violations of this section.
   Subd. 10. Smoking prohibited. Any small vehicle is a FOR-HIRE VEHICLE as that term is used in § 6.60, and as such it is a public place during its hours or operation.
   Subd. 11. Signage. When being operated, a small vehicle must be clearly marked as described in this subdivision. License tags, including number and year for which issued, shall be plainly visible from the front of the conveyance. Both sides of every licensed small vehicle, when in operation, shall be plainly marked as such with a sign or appurtenance showing the full or abbreviated name of the licensed operator. Said signs may be removable if the small vehicle also serves as the operator's personal vehicle when not in operation. However, such removable signs must be adhered in a fashion reasonably expected to avoid separation while in motion. Said sign may also reflect the name of any transportation network company (as defined under M.S. § 65B.472, subd. 1(3)) with whom the operator is affiliated. Further, any signage required by such transportation network company is allowed so long as it does not interfere with the safe operation of the small vehicle nor violate any generally applicable laws. No other signage or advertising is permitted on the exterior of the vehicle.
   Subd. 12. Exemption for drivers licensed in other municipalities.
      A.   A small vehicle driver or operator who is licensed to operate in another municipality in this state may carry passengers from such municipality to anyplace within the city and may freely use the streets and thoroughfares for that purpose and may receive passengers for carriage to such municipality, and such a driver is not required to obtain a license under this section. Such driver shall not solicit business on the streets of the city or otherwise operate within the city without such permit.
      B.   While within the city the driver of a small vehicle licensed in another municipality in the state shall have with him or her the license certificate for the vehicle and display the same to any authorized person upon demand.
      C.   Any taxicab licensee under § 6.36 of this code shall not be required to obtain a license under this section.
   Subd. 13. Severability and Savings Clause. If any section or portion of this section is found unconstitutional or otherwise invalid or unenforceable by a court of competent jurisdiction, that section or portion shall be considered severable and the finding shall not serve as invalidation, or affect the validity or enforceability of any other section or provision of this section.
(Ord. 628, passed 3-16-15; Am. Ord. 672, passed 7-1-19)